EBR Enterprises and Anr. v. Union of India through the Secretary and Ors
[Citation -2017-LL-1106-20]

Citation 2017-LL-1106-20
Appellant Name EBR Enterprises and Anr.
Respondent Name Union of India through the Secretary and Ors.
Court HIGH COURT OF BOMBAY
Relevant Act Income-tax
Date of Order 06/11/2017
Judgment View Judgment
Keyword Tags appellate jurisdiction • condonation of delay • revised return
Bot Summary: His submission is that the Commissioner has completely misdirected himself, as the Commissioner has not noted that the power to condone delay is vested in him under the provision of Sub Section 3 of Section 264 of the said Act. The learned Counsel appearing for the respondent revenue pointed out that there is a finding of fact that every day's delay has not been explained by the petitioners. Why not every hour's delay, every second's delay The doctrine must be applied in a rational common sense and pragmatic manner. In view of the law laid down by the Apex Court, it was not necessary for the petitioner to have explained each and every day's delay. The Apex Court also held there is no presumption that delay is intentional and deliberate, as normally a litigant does not stand to benefit by resorting to delay. The question of going into maintainability of the claim made by the petitioners could have been gone into on merits, only if the delay was condoned. As stated earlier, on a plain reading of the application made by the petitioners, there was sufficient explanation for the delay.


41 wp 6287 2015 rrpillai IN HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6287 OF 2015 WITH WRIT PETITION NO. 8955 OF 2015 M/s. EBR Enterprises and Anr. Petitioners vs. Union of India through Respondents Secretary and Ors. Mr. Naresh Jain a/w. Mr. Rakesh K. Agrawal and Ms. Neha Anchlia i/b. M/s. Agrud Partners for Petitioners in both Petitions. Mr. Arvind Pinto for Respondent Nos. 1 to 3 in both Petitions. CORAM : A.S. OKA & A.K. MENON, JJ. DATE : 6th NOVEMBER, 2017 ORAL JUDGMENT (Per A. S. Oka, J.) 1. In Writ Petition No. 6287 of 2015 there is order dated 10th September, 2015 directing disposal of this petition at admission stage. Both Petitions are taken up for final hearing. 2. challenge in these two petitions under Article 226 read with Article 227 of Constitution of India is to two similar orders dated 12 th November, 2014 passed by Commissioner of Income Tax on applications made by petitioner assessee under Section 264 of Income Tax Act, 1961 (for short said Act ). 1 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 3. Writ Petition No. 6287 of 2015 relates to Assessment year 2007 08 and Writ Petition No. 8955 of 2015 relates to Assessment year 2008 09. 4. finding recorded in impugned orders by Commissioner is that delay in filing applications under Section 264 of Income Tax Act cannot be condoned and therefore, he proceeded to dismiss Revision Applications. As impugned orders are more or less identical, for sake of convenience, we are referring to impugned order made in Writ Petition No. 6287 of 2015. 5. learned Counsel appearing for petitioners has taken us through impugned order. His submission is that Commissioner has completely misdirected himself, as Commissioner has not noted that power to condone delay is vested in him under provision of Sub Section 3 of Section 264 of said Act. He submitted that reasons for delay were set out in application for Revision filed by petitioners. He submitted that Commissioner could not have gone into question,whether on merits, any relief could be granted to petitioners if Revision Application was to be entertained. 6. learned Counsel appearing for respondent revenue pointed out that there is finding of fact that every day's delay has not been explained by petitioners. Secondly, his submission is that in view of Section 80A(5), deduction under Section 80 IB(10) could not have been granted, as no 2 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 such claim was made in returns filed for relevant assessment year. He would, therefore, submit that no interference is called for. 7. We have considered submissions. Section 264 confers revisional jurisdiction on Principal Commissioner or Commissioner. Sub Section (3) of Section 264 reads thus : In case of application for revision under this section by assessee, application must be made within one year from date on which order in question was communicated to him or date on which he otherwise came to know of it, whichever is earlier: Provided that Commissioner may, if he is satisfied that assessee was prevented by sufficient cause from making application within that period, admit application made after expiry of that period. 8. Thus proviso to sub section (3) of Section 264 clearly confers power on Revisional Authority to condone delay, provided sufficient cause is made out. 9. Revision Application was filed by petitioner on 20 th March, 2014 for challenging order of Assessment dated 21 st December,2009. In Revision Application, reference is made to Section 80 IB(10) as amended with effect from 18th April, 2005. After referring to said provisions, it is stated thus : 3 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 However, new sub section(d) which was inserted w.e.f. 01.04.2005 gave impression to applicant it may also apply for ongoing projects during F.Y. 04 05 (A.Y. 05 06) even though projects have been approved before 01.04.2005. In fact, Department in many cases took this stand. Hence, applicant did not claim any deduction u/s 80 IB (1) for A.Y. 2007 08. However, later on, various High Courts and ITAT had taken view that amendment is not applicable to projects approved prior to 1.4.2005. Based on those decisions, applicant claimed deduction u/s 80IB (10) for first time in A.Y. 2009 10 by filing revised return on 31.03.2011. claim was rejected by Ld. Assessing Officer vide his order dated 19.12.2011 but subsequently, claim was allowed by CIT (A) vide order dated 20th February, 2014 enclosed as Annexure 3. It is only after favourable order by CIT(A) that applicant revived claim for deduction u/s. 80 IB (1) for year under reference. 10. claim made by petitioner for Assessment Year 2009 10 was allowed by order dated 20th February, 2014 by CIT (Appeals). Immediately within period of one month, application seeking exercise of Revisional Jurisdiction was filed by petitioner on 20 th March, 2014. Thus, there was valid explanation for delay, though it appears to be long. 11. Coming back to impugned Order, Commissioner has observed there are binding decisions which require each and every day's delay to be explained. Commissioner has made reference to decision of Apex 4 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 Court in case of Collector, Land Acquisition vs. Mst. Katiji & Others 1. However, Commissioner has ignored ratio of said decision. In paragraph 4 of said decision, Apex Court has held thus : 4. And such liberal approach is adopted on principle as it is realized that : 1. Ordinarily, litigant does not stand to benefit by lodging appeal late. 2. Refusing to condone delay can result in meritorious matter being thrown out at very threshold and cause of justice being defeated. As against this, when delay is condoned, highest that can happen is that cause would be decided on merits after hearing parties. 3. Every day's delay must be explained does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay ? doctrine must be applied in rational common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for other side cannot claim to have vested right in injustice being done because of non deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or 1 (SC) 167 Itr 471 5 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 on account of mala fides. litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. (underlines supplied) 12. In view of law laid down by Apex Court, it was not necessary for petitioner to have explained each and every day's delay. On contrary, Apex Court held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice is to be preferred. Apex Court also held there is no presumption that delay is intentional and deliberate, as normally litigant does not stand to benefit by resorting to delay. As stated earlier, in application dated 20 th March, 2014 seeking invocation of power under Section 264, delay has been adequately explained. 13. Perusal of impugned order shows that Commissioner has misdirected himself by going into question whether petitioners could have made claim. question of going into maintainability of claim made by petitioners could have been gone into on merits, only if delay was condoned. As stated earlier, learned Commissioner has referred to decision of Collector Land Acquisition (supra). But we find that ratio of said decision has been completely ignored. 14. Therefore, delay ought to have been condoned by Commissioner by invoking power under proviso to Sub Section 3 of Section 264 of 6 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 Income Tax Act. As far as merits are concerned, both learned Counsel for petitioners and respondent tried to contend that there is adjudication made on merits. For that purpose we must closely scrutinise impugned judgment. In paragraph 17 of judgment, it is observed that : issue before us is as to whether assessee could claim deduction u/s. 80IB(10) though it had not made any claim in return of income for relevant assessment year and impact of sec.80A(5) on such claim. 15. On plain reading of judgment of Commissioner, it appears that said issue though noted by Commissioner has not been decided. As stated earlier, on plain reading of application made by petitioners, there was sufficient explanation for delay. application for revision was filed within one month from date on which petitioners were granted relief for subsequent years. 16. Provisio to Sub Section (3) of Section 264 confers statutory power on Commissioner to condone delay. Therefore it was not necessary for Commissioner to have taken recourse to Section 5 of Limitation Act, 1963. 17. As Statute conferring power of revision itself confers power of condonation of delay, it is not necessary to go into question whether Section 5 of Limitation Act will apply or not. 7 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: 41 wp 6287 2015 18. Hence, we pass following order : (i) Writ Petitions are partly allowed by setting aside impugned orders and by condoning delay in filing Revision Applications; (ii) In view of setting aside of impugned order at Exhibit A, Revision applications preferred by petitioners for Assessment years 2007 08 and 2008 09 under Section 264(1) of Income Tax Act are restored to file of Commissioner of Income Tax for fresh adjudication; (iii) We direct Commissioner of Income Tax to decide both Revision Applications on merits as expeditiously as possible and preferably within period of three months from date on which authenticated copy of this Order is produced in his office; (iv) All contentions on merits of Revision Applications are kept open to be decided at appropriate stage; (v) Writ Petitions are partly allowed on above terms. (vi) All contentions of parties on merits of Revision Applications are kept open to be decided by Revisional Authority. (A.K. MENON, J) (A.S. OKA, J) 8 of 8 ::: Uploaded on - 07/12/2017 ::: Downloaded on - 02/01/2018 09:26:45 ::: EBREnterprisesandAnr. v. UnionofIndiathroughtheSecretaryandOr
Report Error